false claim, damages from fallen tree

[rockerman]

What is the name of your state (only U.S. law)? CALIFORNIA

My backyard neighbor claims that the large branch that fell off my tree and ended up in her backyard caused damages to her plants, fence and patio cover. She says she tried to contact me about damages but I never heard from her and filed a claim with her insurance company and is asking me to pay for her claimed damages including the deductable.

I don't deny that my branch fell but I had it removed promptly and did not see any damages.

I called my insurance company and they said I should deal with my neighbor's insurance company, not them.

What should I do?

 

[FarmerJ]

two questions , was the tree limb healthy or did the neighbor ever notify you in writting calling attention to the tree limb being in poor health ? and lastly was there a recent storm of any kind that helped bring the limb down ?

 

[rockerman]

So the the same tree had a branch fall 2 years with strong winds. Strong winds again caused this to happen. I was never notified that the tree limb was unhealthy, not verbally and not in writing.

 

[justalayman]

if a large limb fell a couple years ago, you should have been able to see something concerning the condition of the tree. If it was unhealthy, that was your notice the tree needed attention and why you would now owe for whatever damages the neighbor incurred.

 

[rockerman]

If I am responsible, I can own up to that, but how is the insurance company supposed to know that her damage claims are true? I didn't see any damage.

 

[justalayman]

It should be somewhat obvious to you whether the damages claimed were possible or not, even if you did not happen to see them. Was there a fence where the branch fell? Was the branch on the fence? What about the patio cover?

 

[drewguy]

If I am responsible, I can own up to that, but how is the insurance company supposed to know that her damage claims are true? I didn't see any damage.

If you haven't searched here, let's go back to the first principles:

1) As a general matter if your tree (or branch) falls in someone else's yard, you are not responsible for damage or removal as a legal matter (put aside moral issues or "good neighbor" issues.

1a) The exception to the rule is if you were negligent in maintaining the tree--that is, you knew that it presented a high risk and failed to take appropriate remedial measures. Then you can be held responsible for damages.

Having a branch fall off a tree does not mean that the tree is unhealthy. It could mean that, but it could also be simply one branch. If it was obvious the tree (or that branch) was unhealthy then you may be responsible, and if a neighbor called the problem to your attention then it is difficult to deny that you were aware of the problem. This is a fact question and hard to answer based on a short post here--how aware were you of the danger?

Second, assuming that you were negligent in maintaining your tree then she is responsible for proving the actual damages. Before you pay anything, she should provide an accounting of what the damages were, including receipts for any repair costs or a list of what in fact was damaged (e.g., if it broke an outdoor table, what is the replacement cost). Just asserting there were damages is not enough--she's not entitled to some amount of money just because a branch fell in her yard.

If she has filed a claim with her insurance company, and they have taken responsibility for the claim, then there is no reason for you to compensate her as well for any damage. They will make her prove her damages. She is also responsible for her deductible. If the insurance company comes after you, then you should turn their claim over to your insurance company, and let the two of them fight it out. You should cooperate with your insurance company so that they can properly defend your claim and determine whose insurance pays for the damage, hers or yours. If they determine you were responsible then her deductible will be covered by your insurance company or by her, depending on the policy, and that is the extent of your responsibility. Of course, if the insurance companies determine the loss is on her, then she pays her deductible and you are not responsible for covering what her insurance does not.

If she pushes you tell her the basic rule and also that because she has made a claim with her insurance company that you have turned over the claim to your insurance company and the two companies will work it out.

 

[tranquility]

Cut and past that bad boy whenever we get a tree question.

 

[justalayman]

except for one problem:

If they determine you were responsible then her deductible will be covered by your insurance company or by her, depending on the policy, and that is the extent of your responsibility.

actually two but I'm skipping over the part where the insurance company cannot declare legal liability as only a court can do that.

The problem is: if OP is deemed liable, he will be responsible for neighbors deductible as well as the costs neighbors insurance company paid out. Whether OP's insurance company covers anything is dependent upon his policy.

 

[tranquility]

I'm not sure what the addition is.

Some homeowner's policies don't cover landowner negligence?

That one does not need to accept an insurance company's determination of liability as one can always go to court?

That if this is not covered by the insurance company, the responsibility may be more than the deductible?

 

[justalayman]

I'm not sure what the addition is.

Some homeowner's policies don't cover landowner negligence?

That one does not need to accept an insurance company's determination of liability as one can always go to court?

That if this is not covered by the insurance company, the responsibility may be more than the deductible?

If they determine you were responsible then her deductible will be covered by your insurance company or by her, depending on the policy, and that is the extent of your responsibility.

It should read: or by YOU.

But even with that, her insurance has the right to seek recompense for their outlay of money so ultimately, the OP (if deemed culpable) would be held liable for all damages experienced by the neighbor, regardless who pays for them initially. If OP has insurance to cover their liabilities, then they may escape paying out anything but that is another situation: OP and his insurance company, and has nothing to do with OP's liability to neighbor.

 

[drewguy]

except for one problem:


actually two but I'm skipping over the part where the insurance company cannot declare legal liability as only a court can do that.

The problem is: if OP is deemed liable, he will be responsible for neighbors deductible as well as the costs neighbors insurance company paid out. Whether OP's insurance company covers anything is dependent upon his policy.

I didn't say the insurance company was determining legal liability, but I can see how the two points could create some confusion.

The first two paragraphs relate to legal liability under the common law (at least as a general matter, although some states may have slightly different approaches).

The paragraph about insurance has to do with financial responsibility vis a vis insurance. As a practical matter, if the neighbor has involved her insurance, the allocation of financial responsibility is likely to be determined by the insurance companies hashing it out. The result may or may not be consistent with what would happen in court, but the responsibility is likely to fall along the same lines as it would if the matter would go to court. Given the description of damages, it seems unlikely (but not impossible) that insurance companies would actually litigate over the damages.

 

[justalayman]

I didn't say the insurance company was determining legal liability, but I can see how the two points could create some confusion.

The first two paragraphs relate to legal liability under the common law (at least as a general matter, although some states may have slightly different approaches).

The paragraph about insurance has to do with financial responsibility vis a vis insurance. As a practical matter, if the neighbor has involved her insurance, the allocation of financial responsibility is likely to be determined by the insurance companies hashing it out. The result may or may not be consistent with what would happen in court, but the responsibility is likely to fall along the same lines as it would if the matter would go to court. Given the description of damages, it seems unlikely (but not impossible) that insurance companies would actually litigate over the damages.

I simply stated, as an aside, that the insurance companies cannot legally determine liability. That would simply mean that if both parties denied liability, if somebody wanted an answer, they would have to have it addressed in the courts.

as to financial liability:

the insurance company has no place in this question. If the OP is determined to be liable, OP is liable. If OP has insurance to indemnify him, then OP's insurance will pay in his stead.

The point I was making was that you stated that the OP would not be liable for the neighbors deductible if his insurance did not cover it. That is incorrect. OP would be liable for all damages if it is determined he is liable, period. If his insurance doesn't cover it, then he will have to pony up and pay out of pocket. The neighbor is not liable for her own deductible if the OP is liable for the damages. She may have to pay it initially but she has a right to seek recompense from the OP.